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Monday, February 15, 2010

UM Law School Challenges Constitutionality of Felony Child Support Statute

The mighty UM Law School has its hands all over the recent constitutional challenge to the felony child support statute. The case was originally charged by UM Law Alumni and Michigan Attorney General Mike Cox. The defendant-appellant in the case is represented by the Michigan Innocence Project, run out of the UM Law School by Professor David Moran.

The case, People vs Likine, was the subject of a one-day jury trial in the Oakland County Circuit Court back in November 2008. Years earlier, Selesa Likine was ordered to pay child support for her three minor children pursuant to her divorce proceedings; also in Oakland County. The criminal case against Likine charged that she fell behind on the support payments from 2005 through 2008, creating arrears in the amount of nearly fifty thousand dollars.

Ms Likine attempted to assert the defense of an "inability to pay" the support ordered by the family court. She claimed disability via the Social Security Administration stemming from her diagnosis of Schizoaffective Disorder and Major Depressive Disorder. Likine also asserted that she was unemployed due to a lengthily hospitalization at the beginning of the charging period. She further claimed that her support obligation was erroneously calculated by the family court, as it was based on a "phantom" imputed income of $5000 per month; a wage she claims she never earned in her entire life.

The felony child support statute is one of strict liability. The Michigan Court of Appeals ruled in a 2004 published case (People v Adams) that a defendant cannot assert a defense at trial of his or her, "inability to pay" the court-ordered child support.

Accordingly, in the Likine case, the Attorney General requested trial judge John McDonald to preclude Likine from introducing any of the above facts regarding her disability and resulting lack of income from jury consideration. The AG's motion was granted based on the Court of Appeals' Adams ruling.

Just prior to the beginning of her criminal trial, Likine's attorney moved for reconsideration of Judge McDonald's evidentiary ruling; this time arguing that precluding her from presenting evidence of her "ability to pay" and of her employment history, violated Likine's constitutional Due Process rights under the 14th Amendment to the United States Constitution. The motion was again denied.

Not surprisingly, Likine was convicted by the jury of failing to pay court-ordered child support and sentenced to one-year probation. When the jury was deliberating her case, however, they sent out a note to Judge McDonald asking for information about Ms Likine's employment history. Due to his earlier rulings in the case, Judge McDonald refused to answer the jury's query.

Following her jury trial, Likine secured appellate representation from UM's Professor Moran, who filed a motion for new trial; this time asserting that Likine's conviction violated the Michigan Constitution. McDonald, stating that he sometimes disagreed with the Court of Appeals' Adams decision, nevertheless denied the motion.

In her appeal currently pending before the Michigan Court of Appeals, Likine relies on a Michigan Supreme Court decision from 1889 which held that statutes cannot criminalize conduct which, through no fault of the defendant, is impossible to avoid. Professor Moran asserts that such a criminal law lacks the requisite, "voluntary actus reus" (bad act).

Along the same lines, Professor Moran raises a claim of violation of federal Due Process under the U.S. Constitution. In this fashion, Likine argues on appeal that the Court of Appeals' Adams decision wrongly eliminates the actus reus requirement of the felony child support statute, rendering it unconstitutional on its face.

In response, the Attorney General asserts that Adams remains controlling in felony child support convictions. The AG's argument is that the Michigan Constitution is not offended when a "prior judicial determination" establishes a payment obligation for which it is a crime to ignore. Since Likine's support obligation was established by the family court, she was afforded Due Process.

In a somewhat surprising move given the high-powered counsel on both sides, the Court of Appeals has submitted the case to a 3-judge panel for decision without the benefit of oral argument. The order to dispose of the case solely on the briefs was issued last week, despite both sides filing timely briefs which requested oral argument.

The losing side on this one will probably try to take the issue before the Michigan Supreme Court.

It is good to see this article and Michigan’s felony non-support statute, MCL § 750.165, in the news. It is a heinous statute with many constitutional violations. Michigan family law practices, of which MCL §750.165 is a part of, need a clear and informed examination and overhaul.

As noted in your blog, the Likine case originates in the Oakland County Circuit Court (OCCC). The OCCC and staff are known to be one of the most aggressive in establishing sole custody, limited visitation, and imputing “phantom” income which results in rocketing child support orders. They do so that they can justify their state employment by ordering and subsequently collecting on these mounting child support obligations. The higher the obligation the more difficult it is to pay and the more the staff of the OCCC has to work at collection. However, this is not an expense on the State and county budget, it is rather a profit making tool. These “child support” obligations bring Title IV-D Federal Block Grant funds into the State, and the federal funds far exceed the State’s expense in enforcing child support. As such, there is a profit in creating single parent families and depriving children of otherwise fit, willing, and able parents (typically the father). The State of Michigan shares the profits in the form of incentives with the counties based upon their creation of and performance in collecting said support. These moneys then flow through to the county courts paying the salaries of those who create the single family homes in the first place. Oakland County is number one in establishing single parent households and in collecting their “child support.” At this point no one need longer ask why fit, willing, and able parents are not allowed to continue their “parental support,” i.e. direct support in their own homes?

Every legal challenge to the constitutional violations of this scheme, including MCL § 750.165, should be brought with conviction and vigour. In addition to the defense of an “inability to pay,” MCL § 750.165 constitutional violations include: Debtor’s Prison, Cruel & Unusual Punishment, & Excessive Bail (actually, no bail!). The lack of mens rea (criminal intent) as an element of violating MCL § 750.165 - also known as the strict liability statute - may also be a violation of the 14th Amendment's Due Process & Equal Protection clause.

As to the Likine case; UM Law School’s Innocence Project and the ACLU should be commended for challenging MCL § 750.165. A challenge to this statute is long overdue. Both the ACLU & UM Law School Innocence Project have received briefs on Debtor’s Prison, Cruel & Unusual Punishment, and Excessive Bail, but for reasons unknown they continue to focus solely on the issue of ability to pay, and the lack of effective legal representation during the trial. In so doing, these institutions miss the other three glaring violations which need to be addressed in our courts. Possibly they could inform your readers as to why?

A copy similar to the Petition for a Writ of Habeas Corpus presented to UM Law School’s Innocence Project and the ACLU can be found at:http://www.scribd.com/doc/18733688/Petition-for-Writ-in-Michigan-Court-of-Appeals-for-Joe-Jurecki

We need to make this a class action case since there are a vast number of people the state is destoying to get more Federal incentives thru Title IV-D of the social security act. I think there are also alot more issues that need to be covered like paul mentioned above. The strict liability law is out of line with the Constitution and a vast number of laws. States like West Virginia have already had to change thier laws and they were not nearly as bad as michigans strict liability one second late or one penny short each month is a 4 year felony.

In michigan...they do not inforce child support...i'm owed over 10 thousand dollars in child support rearages and they are not enforching it...they held him in contempt and required him to pay $500...and let him out of jail on a $60 bond...It is not fair that these people are getting away with this...especially by choice...He has never been in trouble for being late.Wayne county does not help protect our children like they should...and or enforce child support.They use the economy as the excuse...yet these people are working under the table,collecting unemployimen,who have money to support their children yet do not do what the court order says.As a mother,i am struggling working 3 days a week,living day to day,barely getting by.Whild the father is collecting free money from the state and i'm not getting a dime of it.As hes making enough money under the table to buy whatever he needs for himself,not caring what his child needs.I think Michigan doesn't take child support seriously,yet they let a child be in an unsafe environment because its "right" for a child and a father to have a so called relationship when there never has been one to begin with.I think wayne county is not doing what it should as far as what's in the best interest of the children.It seems to be what's in the best wants of the fathers.Regardless if they are right for these children or not.I wish one day the court actually would listen to these children and not what these fathers are so called not able to do.If a parent doesn't care if their child is being clothed or fed or in school,or in sports,as children should,then its not in the best interest of that child to be with a parent that doesn't care about their own well being.Its not fair how the system works...If it weren't wayne county some single parents doing whatever they can to get by and make sure these children have food on the table...would be taken more seriously.

This article,UM Law School Challenges Constitutionality of Felony Child Support Statute, is just one example of the cruel and factory-like justice system we have here in Michigan.

I'm surprised the judges don't wear white wigs and and have little "hangman platforms" on their benches!How can a judge "impose" an income amount for someone that is unemployed? And if that person is collecting social security, how can it dictate a support amount larger than a dependent supplement amount from s.s.?

I can foresee a time when a person will be, again, sentenced debtor prisons at a cost of $25,000 to $30,000 per year in costs, probably far more than the person owes in child support yearly.

Title IV-D does not award incentives for total dollars collected, Joe. Agencies are awarded funding for collecting a percentage of the ordered amount, which obviously means there is an incentive to set reasonable order amounts. Unfortunately, as stated by anonymous, this is not always possible which is why the prosecutor and attorney general pursue felony charges. Don't blame the court system for failure to follow the law.

Based upon 25 years of family law experience in southeastern Michigan, the felony support law, by eliminating the defense of inability to pay, is clearly a violation of due process. I've seen many, many cases where the payor fails to go to court to reduce support when there's a loss of employment, others where the payee misrepresents to the court the amount the other (ususally the father) earns. Even when the support amount and arrearage is the result of a fraud upon the court, it is no defense to being convicted of a felony. I currently have a Wayne County case where the arrearage grew as a result of my client having a massive heart attack and once recovered, couldn't find work within his restrictions. He lives out of state. He is charged with a felony and there is a warrant out for his arrest. Everytime he is hired for a decent job, the background check reveals the arrest warrant and he is terminated. According to the prosecutor, he can come here to be arraigned but will be jailed unless he has at least $5,000 to post as bail. While the prosecutor indicated she would review the case and reconsider the charge in light of his documented medical issues, nothing would be done until he returns to Michigan with $5,000. My experience with some of the Oakland County Prosecutors is that they do not even want to hear any explanation for the arrearage. Under the statute, it doesn't make a difference. I am glad the law is being challenged. Next, I'd like to see some relief from the statute that won's allow retroactive modification of support in the event of a change of custody. It is non-sensical that a parent who has the children must be condemned to have a massive arrearage because they didn't have the time, money or sophistication to know they had to file a motion to terminate support when they obtained custody of the children. In Michigan's current environment, too many people have lost jobs or deal with reduced income without filing for a reduction of support. While honorable, the consequences of falling behind are unnecessarily severe.

We (our or legislature) have created a self-replicating circle of destruction that will destroy our State, its called the prison-anti-educational system. If you did not know we spend more in Michigan on the Prison system than we do on education.

Educated people are critical to a functioning State as without them, human emotions control.

This Felony Child non-support law (as with a few other laws that need "adjusting" or struck down outright, like PPOs granted ex parte). This Felony non-support law is clearly Unconstitutional, Un-American, and downright wrong. So we as Citizens need some of the best legal, AND OTHER minds working on the issue, finding appellate cases, and then aggressively challenge these laws and strike them down even if it takes going to the SupCrt!

Have you ever thought if the State gave people just a quarter of the cost of a prison bed ($42,000/4=$10.5K) a year if they needed it and could not find work we would NOT have any crime (I know its unworkable, but just used as an example how stupid it is to pay for all but murders, rapists, child molesters, and the like in Prisons - which is full of Marijuana users, property crime violators and other People, and many innocent people who had a crap court-appointed lawyer so they got convicted when they did nothing as our indigent defense system is a joke -- do not think all people in jail or prison are guilty, the innocence project has proven that a myth).

Are we nuts thinking this system is keeping us safer? It actually is making us unsafe as those "short" prison sentences are making young unrecoverable into skilled criminals and then putting them back into the community! They go to crime school when we should be doing something else (like maybe sending them to school so they are not stupid enough to commit a crime)?

Oh yes, if we spent less on Prisons would be able to fund our Educational system so the kids now in grade 1 would not have to look forward to going to prison, they could look forward to productive lives as good citizens! it is truly crazy,but that's exactly what Michigan is doing and has been for years.

It is an insane Government that puts more money into corrections, has a deficient indigent defence system, so when a poor (or really middle class) citizen gets charged with a crime they are not falsely convicted and life ruined.We have created a self-fulfilling cycle where we destroy people not because they are guilty or did a crime, but because it is politically incorrect to say the criminal justice system is broken so bad it is a crime in itself!

Do not get me wrong, some people belong in Prison. But at $42k a year, lets be real choosey who we put there as I do not, for one, want anyone but Murderers, Rapists, Child Molesters, and ones who failed the probation or other system, to be in Prison. We cannot afford to lock up marijuana smokers, property offenders, and idiots any longer, it is bankrupting the State and people are leaving in droves as who wants to come to this economic-broken-criminal justice system State? no one!

Lastly, Michigan has no law or provisions for those that clean up after being in trouble -- no way for anyone with more then 1 Felony conviction from EVER wiping their record clean. Not after 10 years. Not after 20 years. Not after 30 years, so Let me repeat one more time - EVER. Anyone with more than 1 felony conviction cannot ever get rid of it off their record! The conviction becomes a life sentence as Most all employers now do felony checks as a part of the application process, and will not hire anyone with a felony (soon Misdeameanor) conviction. they just move to the next applicant. Even contacts with LEO are now becoming searchable and soon those people are not going to be EVER getting jobs either as it is a race to the bottom on how punitive we can be.

The criminal justice system seems now to be an oxy moron . There seems to be no justice in the system at all . It is sad what has happened to our constitutional rights here in America . It is even sadder that the laws that are against the constitution , are written by those whom are supposed to know the constitution [ i.e. lawyers / politicians ] . I am one who was defaulted by Oakland county [ for a child that isn't mine ] , and was arrested for felony child support . I could write a book on the injustice of the way that these cases are handled .

UNCONSTITUTIONAL... Turning parents into felons and criminals. that seems kind of criminal to me. probly a federal goverment money scam to make money for michigan off the poor by getting them in criminal correction system and charging the federal gov the bill. keep those prisons full michigan. UNACCEPTABLE AND CRUELL AND UNUSUAL I THINK. im currently serving my 5th year of my felony child support. and actually its my sixth year if u wanna get technical. one year over what the law allows. i have one kid.

This tragedy has to end at some point or i fear our country will become the next Lybia/Egypt etc. People are fed up with this corrupt law better known as the Bradley Amendment. People are getting very fed up with the government violating the constitution and that is the sort of thing that leads to uprisings. Whats worse is this is no more then a money making scam as that states/feds reaps a huge cash inflow off the backs of the middle class and poor and sadly most importantly our children as child support money does not all go to the children but to the state and feds as well. A nice chunk of it too. This is why a number of courts/Friend of the court does not wanna hear it and doesn't care if you are on your death bed they want YOUR money and that is all that matters. Only few who are still for this unconstitutional act is those seeking revenge on their ex spouses. Then ofcourse the constitution and most states have laws against debtors prison and thus another violation of our rights and the constitution.

I also just found out that after serving a five year FELONY sentence and on my last month of probation that they feel i havent payed enough so they are now giving me a probation violatian and now could spend uptoo 4 years in prison on top of my five years FELONY i just completed. i have one kid. UMMM CRUELL AND UNUSUAL. UMMM UNCONSTITUTIONAL. AND WHY MICHIGAN R U PUSHING PARENTS AWAY FROM THERE KIDS FOR FEDERAL MONEY? THAT IS CRIMINAL...IM HOPING I CAN SUE THE SHIT OUT OF U FOR VIOLATING MY CONSTITUTIONAL RIGHTS AND NOT TO MENTION THE CRUELL AND UNUSUAL PUNISHMENT I AM RECEIVING. A FELONY AND 9 YEARS.. AND MICHIGAN WHY WOULD U MAKE PRISONS YOUR TOP PRIORITY OVER A CHILDS EDUCATION? SOO U CAN LOCK THEM UP TOO?

Aparrently after getting too the end of a FIVE year FELONY sentence wich included jailtime,teather,community service, my probation was violated on the last month because they felt i didnt pay enough...soo now im looking at FOUR years in prison..IT WOULD EQUALL 9 YEARS TOTAL. THIS IS CRUELL... AND VERY UNUSUALL. AND UNCONSTITUTIONAL.... this is not rite...yet nothing is being done too stop this injustice. seems like a good lawsuit. The bradley bill is another example of how are rights are being violated and how are constitution is being rewritten. If u ask me that seems kind of criminal. turning parents intoo criminals and felons. way too go michigan. also why is more money spent on prison and not education.

Title IV part D of the social security act does in fact award states for total dollars collected. There is 2 parts of the funding 1 is block grants for setting up certain programs etc. The second is incentive funds which the states fight over a pool of money. I have made numerous charts showing the flow of Title IV money to the states and courts after finding the direct conflict of interest in the whole scam. This should all be prosecuted under the RICO act. The FOC should also be abolished since it voids the seperation of powers on its face.

What has me knowing the lawful courts are unlawful...is Michigan Compiled Law 600.5809 (4) is the statute of limitations, to collect arranges, yet the friend of the court violate the ex-post-facto as the friend of the court steals 100% of the federal and state tax return...an claim it as a willful payment... In a laymans opinion doing so seem to trash federal Title 42 USCA 1994...working for DEBT!!! Is should be posted in every major news paper...to see if any one reads these days?

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About Me

A lawyer for 25+ years, I have a lot of experience solving tough legal problems. Father of three great kids; life-long lake dweller. My practice includes divorce, family law, criminal defense, and probate law.